2017 QCCQ 3578, 2017 QCCQ 3578

Rodrigue c. Air Transat Tours 2017 QCCQ 3578 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151939-164 DATE: April 5, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ EARL RODRIGUE, Plaintiff v.

AIR TRANSAT TOURS, Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Earl Rodrigue, who purchased a travel package from the Defendant Air Transat Tours (Transat) claims that Transat is responsible for its failure to provide the services of the Children’s Mini-Club throughout the two-week stay as advertised and as normally provided. [ 2 ] He seeks the reimbursement of the cost of the vacation for the party of three, including Mr.

Rodrigue’s young daughter ($ 5,442.44), as well as $ 1,000 for each member of the party for undue stress and lack of enjoyment, for a total of $ 3,000, bringing the grand total of the claim $ 8,442.44. [ 3 ] Transat contests the claim on the grounds that it was not advised of any issues pertaining to the Kids’ Club activities, that Mr.

Rodrigue benefitted from the components of his package in accordance with its presentation and that his claim is exaggerated. [ 4 ] The hotel in the vicinity of Holguin, Cuba, known as “Sol Rio de Luna y Mares Resort” is not a party to the proceedings though it engaged in correspondence with Mr. Rodrigue concerning his complaints. ISSUES [ 5 ] To resolve this conflict, the Court must determine : 1. Is Transat responsible to the Plaintiff for the hotel’s failure to provide the Kids’ Club services for the benefit of the family during their stay? 2.

If so, what is the quantification of the reparation of the prejudice owed to Mr. Rodrigue? FACTS [ 6 ] Hotel Sol Rio de Luna y Mares Resort is classified as a Four Star accommodation on the Transat website and other publicity. Mr. Rodrigue and his family were regular customers of the hotel through travel packages, having sojourned there at least five times in the last three years when he returned between November 14 and November 29, 2015. [ 7 ] The Kids’ Mini-Club is for children ages of five to twelve years old. Mr.

Rodrigue’s daughter had been admitted on previous occasions although she was less than five years old. During this trip, she had reached the age of five. [ 8 ] Transat’s website contains publicity concerning this hotel. Under the

section titled « Families – Sol Río de Luna y Mares », the text reads : « The Meliá Cuba hotels offer facilities and services especially designed for families in 13 of its hotels (including accommodation, cuisine, and activities and entertainment for children and families). This is why there is a special programme and package for family reservations, areas for families, mini club and baby club and kids’ pool and paddling pool, play area, kids’ corner, children’s menu, babysitting, daily activities programme for children and teenagers at the beach and in the pool, electronic games room, PlayStation, Wii,

family coordinator, family room and connecting rooms, sofa-beds, bunk beds, extra beds and cots, single parents offer and last minute offer, amongst many more accommodation possibilities for families.

Imagination, magic and a whole load of new friends to enjoy some incredible adventures is the option that the Sol Rio de Luna y Mares offers to its youngest guests, the stars of our Cubamigos for family vacations, whose fun characters: Quelonio, Pepelicano and Ijuana invite the kids, young and old, to have fun with educational activities both day and night, always in a friendly, safe, comfortable and familiar atmosphere.

Ensuring safety and entertainment so our youngest guests can live the experience of a great vacation is the aim of our specialist personnel at our Club Cubamigos, where children will find a complete programme of activities appropriate to their age, including games, painting, dancing, excursions, fancy dress, story telling, competitions, birthday celebrations, clowns and much more, all in the wonderful surroundings of the beach and lush vegetation.

FACILITIES AND SERVICES At the Club Cubamigos a the Sol Rio de Luna y Mares we offer a daily activity programme for children on the beach and in the pool, Pack Cubamigos, services and programmes for families, Club Cubamigos, special area for families with kids’ pool and baby club and mini club. » [sic] [ 9 ] In a complaint that Mr. Rodrigue posted on the Luna y Mares page on TripAdvisor, he complains : « .,. it was the management for the Kids Mini Club that was a complete disaster.

The key person who looks after the kids was on vacation, so they had the adult entertainers looking after the kids, which was a very bad idea, as they did zero activities that are posted on the kids activity list, it was just a sit and let 2 hours pass for the kids. They even tried to cancel the Mini club one day, but after heated discussions with management, and they quality of over sight, they put it back, but they say it was a misunderstanding that day. We decided to take our kid away from Mini club after 5 days..

And the mini Disco at night was a on one night, off the next night, on at 8:45 pm one night, next was at 7pm, they keep changing the time, guess to get back at us for the complaint. Some nights the mini disco it lasted 5-7 minutes. As we have used the mini club in the past, as it use to last at least 15 minutes. The whole experience was a disaster. They should have gotten a qualified replacement, and not pushed it to the adult entertainers. Plus one day it was one person, next day was another person.

Even went up the management chain, but could never get to the Hotel manager. » [sic] [ 10 ] Indeed the Mini-Club posted a weekly

schedule entitled « Animacion Mini-Club » including various games, activities and tours including horseback riding and a special event called « Te gustar ía ser Princesa por un d ía? Would you like to become a Princess for a day? ». ANALYSIS [ 11 ] Because the person who customarily took care of this programme was away on vacation and had not been adequately replaced, the activities of the Club essentially folded into an inadequate babysitting service carried out by people whose abilities did not include child care and running a structured children’s animation programme. [ 12 ] Mr.

Rodrigue’s testimony was very detailed and convincing and, if anything, it is surprising that he tolerated the situation for five days before withdrawing his child from the inadequate and inefficient programme. [ 13 ] In the hotel’s correspondence, it essentially admits that he is right. [ 14 ] The Guest Relations Manager of the hotel responds to the TripAdvisor review : « First of all thank you for taking your time. But especially we would like to apologize for not fulfill your expectations in different areas, especially concerning the miniclub. We do agree with most of the points you have stated.

The circumstances were anylized with the entertainment manager. Even when some members of the management did debate with you. We have a mixed feeling because you could not offer the best entertainment program to make fun your daughter. If you decide to not return our seventh time in 3 years, it would be a great loss for us but we would understand. We will choose other member of the entertainment team for replacing Irina when she takes her holidays.

Looking forward to see you soon » [sic] [ 15 ] Transat did not provide any substantial defence to this claim though it argued effectively that the amount of the claim is higher than what is necessary to compensate the Plaintiff. [ 16 ] Neither the idea that the Transat representative had not been brought into the picture sufficiently by Mr. Rodrigue nor the argument that the Club was technically open and therefore the service had been provided were effective to counter the effects of the narrative as recounted by Mr. Rodrigue, both in his written communications and in his oral testimony before the Court.

[ 17 ] Transat as the seller of the tour, whether at the retail or wholesale level, has solidary liability for the inadequacy of the services provided by its business partner, the hotel. The hotel’s diplomatic attempts to qualify its admission of fault may have been an attempt to save face. Essentially, fault is admitted. [ 18 ] As to the quantification, it would be wrong to compensate Mr. Rodrigue by reimbursing all the value of the hotel travel package and give an additional $ 3,000 of moral damages.

The hotel tried to resolve matters by an apology (P-6) and by offering a package of added values for a future trip, including an upgrade to an Ocean View room, booking for all à la carte restaurants per week, free Princess Day and free late check-out until 4:00 p.m. guaranteed. While it was honourable to make such an offer, it was clearly inadequate. [ 19 ] Transat breaks the price of the hotel down into the flight and hotel components and argues that the family had most of these services which make up the all-inclusive vacation. [ 20 ] Mr.

Rodrigue responds that the trip must be seen as a whole and not broken down into parts.

This was a family-oriented vacation and the Kids’ Mini-Club component was an important aspect of the enjoyment of the holiday by all members of the family, including the child, but also the adults who needed some time to themselves, and who were hoping to provide to the child a stimulating and entertaining stay so that the whole family would return to their routine at the end of the vacation refreshed and relaxed. [ 21 ] So although they had their three square meals and a place to sleep, and vacation time on a nice beach, there was a major disappointment and inconvenience associated with these events. [ 22 ] The sum of $ 8,442.44 is clearly disproportionate to this prejudice, but the Court considers $ 3,000 to be a reasonable measure of the loss in terms of reduction of price and moral damages.

BY THESE REASONS, THE COURT: CONDEMNS the Defendant, Air Transat Tours, to pay to the Plaintiff, Earl Rodrigue, the sum of $ 3,000, together with interest at the legal rate and the additional indemnity provided in

Article 1619 of the Civil Code of Quebec , calculated from January 15, 2016; THE WHOLE with judicial costs in the amount of $ 185 for the Court stamp, plus $ 13.04 for postage costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: March 27, 2017